July 9, 2009
What are the elements that constitute an approvable H-1B petition? This is the question that my clients who call my Columbus, Ohio office ask frequently. What can the employer and employee do to help their H1-B visa attorney get the best results for them. I have a client in Washington, DC once tell me, please give me a list of your most important items that would help you get my case approved.
As an H1b attorney who filed more than 1000 petitions in my career, there are 3 main issues in mind that would determine whether an H1b petition will be approvable: 1) issues related to the employer; 2) issues related to the position; and 3) issues related to the prospective employee.
Issues related to the employer normally depend on whether the employer has the ability to pay the wages of the prospective employee, whether the employer is truly an employer and not an agent who places employees at temporary assignments without controlling much of their activities. Depending on the size of the employer, the USCIS will take a differing position. Our firm has for more than a decade represented large employers having more than 30,000 employees obtain visas and green cards. I have also represented many small firms whereby we filed H1B petitions for their prospective employees. If you are a large employer, chances that USCIS is comfortable about the size of the organization and will trust that the employer does have the ability to pay the wages of the employee and that it also passes the IRS test of employer-employee relationship in that it controls the activities of the employee on a daily basis.
Now, when it comes to the smaller employer, the story is drastically different. The smaller employer (less than 50 employees) has additional documentations to submit to create this comfort level depending on the circumstances. These additional documentation include, but are not limited to, the existence of in-house projects, business plans, contracts for work, financial information and many more. When it comes to smaller employers, proper planning must be undertaken as the days of USCIS rubber stamping H1B visas are over.
In addition, it is important to note that USCIS is now keeping a keen eye at smaller employers as there is a feeling that such smaller employers do violate the regulations frequently. Smaller employers are encouraged to plan their H1b petitions with competent H1b lawyer, one who has many years of experience in H1b petitions in order to assure that contradictory information is not filed. This is what our firm has preached for almost a decade: get your story right before the USCIS! This is concerted effort between H1b immigration lawyer and the employer jointly.
The second issue deals with whether the position is a specialty occupation meritorious in getting an H1b visa. Just by naming the title of the position as “programmer analyst” is not sufficient to cause a position description to pass USCIS scrutiny. The position responsibilities are essential in achieving the specialty nature of position description. In addition, copying standard language from published US Department of Labor or USCIS material will not do it either. USCIS has grown very impatient of employers or attorneys who do that. So, make certain that you allow your attorney to spend the time to analyze the position description carefully and to make certain that it is in fact specialty occupation.
Finally, the alien must be eligible to receive the H-1b visa or status. If the alien outside the US, then there are no issue in proving that the H1b visa employee had maintained status. That is only an issue if the employee is currently in the US. Make certain that you give your H1b attorney sufficient documentation that proves proper status. The other relevant issue that pertains to the prospective employee is whether or not he or she is qualified to fill the particular position. If the alien employee has a foregin degree, then an equivalency evaluation from a reputable evaluator must be obtained. There are special rules that apply if the employee has less than a four year bachelor degree or its equivalence that must be studied carefully.
These are short synopsis of some of the large issues that governs the approvability of an H1b visa. In the end I would like to leave the reader with one thought: consult with an aggressive and reputable H1b visa lawyer one who will help your company achieve its objectives. The immigration lawyers at Shihab & Associates, Co., LPA, are very experienced in H1b petitions for large and great emphasis on small employer issues.